Ontario’s highest court has restored Canada’s anti-terror law to full strength and sent an unmistakable message that terrorists acting on Canadian soil “will pay a very heavy price.”

Momin Khawaja leaves the Ottawa courthouse under RCMP protection on May 3, 2004. Khawaja was convicted of five charges under Canada's anti-terror laws.

By:Tracey TylerLegal Affairs Reporter, Published on Fri Dec 17 2010

Ontario’s highest court has restored Canada’s anti-terror law to full strength and sent an unmistakable message that terrorists acting on Canadian soil “will pay a very heavy price.”

The Ontario Court of Appeal released six major decisions in terrorism cases Friday.

In its leading judgment, the court dismissed an appeal from Ottawa software engineer Momin Khawaja, the first person convicted under Canada’s anti-terrorism legislation, increasing his sentence from 10 ½ years to life in prison.

Terrorism, Justices David Doherty, Michael Moldaver and Eleanore Cronk said in their decision, “is a crime like no other.

“Once detected, it must be dealt with in the severest of terms,” they wrote.

In a key component of its ruling, the court said an Ontario trial judge presiding at Khawaja’s case in 2006 erred in striking down portions of the Criminal Code’s anti-terrorism provision after concluding the legislation could inhibit fundamentalist Muslims from expressing their political or religious beliefs.

Khawaja was found guilty of building a detonator known as the “hi-fi digi-monster” as part of a plot to use fertilizer bombs to blow up shopping malls and night clubs in Britain.

The court also upheld — and, in two instances, increased — prison terms handed to three members of the Toronto 18 in connection with the plan to detonate bombs at the Toronto Stock Exchange, the Canadian Security and Intelligence Service (CSIS) headquarters on Front Street and an unspecified military base east of Toronto.

Zakaria Amara, the mastermind of the Toronto 18, pleaded guilty and was given life in prison.

The court dismissed his appeal of his sentence and increased from 12 to 18 years the sentence handed to Saad Gaya, who also pleaded guilty to participating in the plot.

Their co-conspirator, Saad Khalid, had his 14-year sentence increased to 20 years.

“In truth, the respondent was engaged in a diabolical plot that most 19-year-olds would never think of, let alone pursue,” the judges said.

In effect, the court said it didn’t matter that they were first-time offenders.

The appeal panel also dismissed appeals from two men, Piratheepan Nadarajah and Suresh Sriskandarajah, who were ordered extradited to the United States to stand trial on terrorism charges. They are alleged to have assisted the Tamil Tigers, a group at war with the Sri Lankan government, by offering to purchase surface to air missiles and an AK-47s on the black market.

Canada’s justice system puts the premium on individual freedom and accepts that offenders can be rehabilitated, but this belief system might also be seen as a sign of weakness by those who reject democratic values, the court said on Friday.

“Terrorists, in particular, may view Canada as an attractive place from which to pursue their heinous activities.

“And it is up to the court to shut the door on that way of thinking quickly and surely.”

Nadarajah and Sriskandarajah, like Khawaja, argued the definition of "terrorist activity" as set out in the Criminal Code was unconstitutional.

In Khawaja's appeal, a so-called "motive clause" in the legislation was in issue.

It defines terrorism as harmful or intimidating acts committed for political, religious or ideological purposes.

The question for the court was whether this infringes freedom of religion under the Charter of Rights and Freedoms.

Justice Douglas Rutherford, who presided at Khawaja's trial in the Superior Court of Justice, found the legislation violated the rights not of terrorists but of others who might share the same political, ideological or religious beliefs as terrorists. In other words, it risked a form of collateral damage.

Rutherford felt that members of the community who shared some of the views associated with those who engage in terrorist activity or have the same religious or cultural background, including Muslims, might be inhibited from expressing those beliefs.

They might also come under police scrutiny because of their religion or political views, he found.

"The problem with the trial judge's view," the appeal court said on Friday, "is that it is founded entirely on speculation."

"The anti-terrorism legislation has been in place in Canada for almost 10 years. Similar legislation operates in several other countries. If the motive clause has dampened freedom of expression in certain segments of the community, as assumed by the trial judge, one would have thought that the appellants would be able to produce, at the very least, some credible anecdotal evidence to that effect."

Even assuming there are people who subscribe to the same religious and political beliefs as terrorists, there are other explanations for why they might be wary of expressing those views, Justices Doherty, Moldaver and Cronk continued.

"Perhaps, most obviously, there is the reality of the world we live in," they said.

"Many, but by no means all, of the major terrorist attacks in the last 10 years have been perpetrated by radical Islamic groups fueled by a potent mix of religious and political fanaticism.

"It is hardly surprising that, in the public mind, terrorism is associated with the religious and political views of radical Islamists.

"Nor is it surprising that some members of the public extend that association to all who fit within a very broad racial and cultural stereotype of a radical Islamist.

"In making these observations, we do not intend to condone profiling or stereotyping," the court said. "We do, however, mean to say that the most obvious cause of any 'chilling effect' among those whose beliefs would be associated in the public mind with the beliefs of terrorist groups is the temper of the times, and not a legislative provision that in all probability is unknown to the vast majority of persons who are said to be 'chilled' by its existence."

The court substituted a life sentence for the sentence of four ½ years in prison that Khawaja had been handed by Rutherford for his conviction on one count of developing the equipment to set off the bombs.

The appeal judges also increased to 24 years Khawaja’s sentences for other offences associated with the plot.

He will have to serve at least 10 years before becoming eligible for release on full parole.

"The appellant is now 31 years old. He is still a young man," the court said. "If he truly reforms and renounces his commitment to violent Jihad by presenting clear evidence of his reformation to the satisfaction of the parole board, he will have the opportunity to live out a full and productive life in the community, albeit under the scrutiny of the parole system."

"If he does not reform, society will at least have the peace of mind of knowing that he will never again be in a position to pursue his deadly activities.”

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